Freedom of Information
There is something very offensive about the idea that a ‘bachelor of science’ degree can be awarded by a university, as a prize for memorising gobbledygook.
Once the contents of the ‘degrees’ has been exposed to public ridicule, many universities have stopped doing it. All (or nearly all) of these pseudo-degrees have closed at the University of Salford, the University of Central Lancashire, Robert Gordon University, the University of Buckingham, and even at the University of Westminster (the worst offender), one course has closed (with rumours of more to follow).
I’ve already written about the course in Traditional Chinese Medicine at the University of Salford (Chinese medicine -acupuncture gobbledygook revealed) and at the University of Westminster: see Why degrees in Chinese medicine are a danger to patients. The former has closed, but not the latter. Here is another one.
One place that has yet to come under close scrutiny is Middlesex University.
Michael Driscoll, VC of Middlesex University. The buck stops with him.
Their “Complementary Health” courses are as follows (April 2010).
- Complementary Health Sciences (Ayurveda) Degree, BSc Honours
- Herbal Medicine Degree, BSc Honours
- Traditional Chinese Acupuncture Degree, BSc Honours
- Traditional Chinese Medicine Degree, BSc Honours
and also two postgraduate courses
I asked Middlesex University for samples of their teaching materials under the Freedom of Information Act, and, as usual, the request was refused. As usual, I then asked for the mandatory internal review of the decision, and this time, most unusually, the internal review did not confirm the initial refusal and I was sent a bundle of teaching materials about Chinese Herbal Medicine, It was not all I asked for, but it is quite enough to show the absurd ideas that are still being taught as part of bachelor of Science degree in a UK University.
Not only are the ideas absurd, pre-scientific, indeed antiscientific. They are also dangerous. People who have been taught this nonsense are going out and being let loose on sick people.
The vice-chancellor of Middlesex University, Professor Michael Driscoll, is an economist, not a biologist. Surely you don’t need to be a scientist to feel a bit suspicious when you read on the Middlesex web site about
Traditional Chinese Acupuncture and Moxibustion including distribution of meridians-collaterals and location of acupoints; needling and moxibustion techniques;
Have any of the members of the Executive ever thought to ask about what goes on in these courses? Even if it is beyond an economist to see through the nonsense, surely it should be possible for Professor Margaret House, Deputy Vice-Chancellor Academic, whose interests lie in water quality, should be able to, though as Dean of the School of Health and Social Sciences she appears to sponsor the nonsense. And Professor Waqar Ahmad, Deputy Vice-Chancellor Research and Enterprise, who has written a s book on Ethnicity, Health and Health Care, should surely be able to distinguish sense from nonsense in health care? In that respect, I’d have less confidence in Katie Bell, Chief Marketing Officer, who joined Middlesex University in 2009 following a career in brand marketing for Nestlé UK and GlaxoSmithKline Consumer Healthcare. Marketing people seldom have much regard for truth.
Have any of the University’s Governors ever asked what is going on in their name? It’s true that none of the long list of distinguished-sounding governors is a scientist. Surely you don’t need to be to question whether or not what follows can be described as ‘science’.
My guess is that none of these distinguished people has ever bothered to look at the dangerous nonsense that is being taught in their University. It is not in the nature of ‘managers’ to look far beyond ticked-boxes and profit, They should have done of course, but to make it easier for them, here is a small selection of the slides that I was sent (the copyright for them lies with the university: these few slides come under the heading ‘ ‘fair quotation’ and it is undoubtedly in the public interest to show them).
Course CMH 1211
Uhuh, my spleen qi is well and truly knotted already though when I learned physiology it was not thought that the spleen had much to do with emotions.
Ah so at least the problem of heavy breathers is solved. But high temperature, abdominal pain and abnormal pulse can be signs of serious illness. If your only explanation for them is “preponderant evil Qi”, you are a menace to public health.
All these symptoms could be the result of a serious disease. It is not only antiquated nonsense to talk about them in terms of Yin, Yang and Qi. It endangers people,
Course CMH 2212
Chinese materia medica. Some of the herbs are likely to contain active ingredients (indeed some are very dangerous). It would be quite possible to study the ingredients of these herbs and to investigate how they work in the light of what has been learned about physiology and pharmacology in the last 200 years. Pharmacology has a long history of doing that, But is seems to play no part in this course. Herbs are “cold” or “hot” and may “check the exuberance of yang”.
and so on, just preposterous, made-up nonsense from another era.
If it were taught as cultural history, it might be interesting. But it is being taught as though it were true, and an appropriate way to treat sick people.
Course CMH 3214
Would you trust your child to someone who’d been taught that “causes of paediatric diseases are relatively simple”, and “children are pure yang”?
Now some Chinese recipes
Course CMH 3100
This may or may not taste good, but to recommend it for diabetes is seriously irresponsible.
The programme specification for the “BSc (Hons) Traditonal Chinese medicine” can be found here. [local copy download]
It is written with all the official trappings, just as though the degree was about science. It isn’t. It is a danger to public health.
I have asked the vice-chancellor, Michael Driscoll, to express his view of these comments
A rather unexpected comment from a London acupuncturist.
“At least,I knew that Professor David Colquhoun is very skeptical about Chinese medicine. he comment Chinese medicine study”not only are the ideas absurd, pre-scientific, indeed antiscientific. They are also dangerous. People who have been taught this nonsense are going out and being let loose on sick people.” “
“But,I still like to read his blog as His article very is respectable. I think. Look this…”
The skeptic blog featured this post in its weekly roundup.
27 May 2010. Times Higher Education reported the decision of Middlesex University to close its philosophy department. This department seems to have a remarkable reputation, not least for a post-1992 university. Three academics and four students have been suspended and gagged in classical bullying style.
This has happened while they continue to teach dangerous rubbish like that described above.
I left a comment at Times Higher, as follows.
It is a reflection on the quality of university management that Middlesex has chosen to shut its philosophy department while continuing to run degrees in quackery. These courses not only offer an Hons BSc for memorising chunks of anti-scientific nonsense. They also pose a real danger to patients. See http://www.dcscience.net/?p=2923
I can think of no better illustration than this of the crass nature of the judgements made by Middlesex’s management. They are either ignorant of what constitutes science, or they are corrupt. I see no other possibilities. In either case they should not be running a university.
I think Prof Michael Driscoll owes the world an explanation.
Yet another university has stopped its homeopathy course. The particular interest of this course was that it was being run at Robert Gordon University, Aberdeen, the vice-chancellor which was Michael Pittilo, until his recent premature death. Pittilo is the person who recommended to the government that herbalists and Chinese medicine practitioners should get honours degrees and be regulated like doctors. His report, was, in my opinions, disastrously bad.
It recently emerged that this, very bad, advice would not be accepted by the Department of Health (DH), so the campaign against the Pittilo proposals, on this blog and elsewhere was successful. The alternative DH proposals look pretty silly, but we won’t really know until after the election exactly what will happen.
Robert Gordon University (RGU): is the ‘post-1992’ university in Aberdeen, as opposed the the University of Aberdeen (where my son is at the moment). Much of RGU does an excellent job, but like so many post-1992 universities they harm themselves by running courses in barmy alternative medicine. RGU ran an Introduction To Homeopathy module (saved 9 April 2010).
In July 2009, I asked RGU to see some samples of the teaching materials on this module, partly as part of the campaign against Pittilo’s proposals. I asked to see the powerpoints and handouts for three lectures, (1) evidence for homeopathy, (2) first aid remedies, and (3) allergies.
In September 2009, this request, made under the Freedom of Information Act (Scotland), was, as always, rejected by RGU, though they did tell me that the evidence lecture had been produced by a lecturer from The Faculty of Homeopathy and the other two had been produced by a local GP.
So, as usual, I asked for the mandatory internal review of the decision. In October, the review upheld the original decision, as they almost always do. I referred the decision to the Scottish Information Commissioner (the law is slightly different in Scotland) and they have still not responded.
But on 8 April 2010 I got a letter from RGU.
“The above course requested is no longer part of the School of Nursing and Midwifery’s provision, and it was cessated [sic] in Semester One 2009/10. This followed a formal review of all Nursing and Midwifery modules and their viability. In the light of this the university has decided to release the information.”
So yet another university has done the sensible thing. The course has been shut. Just for the record, I’ll reproduce a few of the slides from the lecture on “homeopathic remedies for allergies”.
Allergies can be dangerous, and occasionally lethal. To treat them with homeopathic pills, medicines that contain no medicine, is not just delusion, but a dangerous delusion which risks the lives of patients.
The "remedies" include nettles, sulphur, petroleum and arsenic. They’d be pretty scary but in fact the pills contain, in most cases, not a jot of nettle, sulphur, petroleum or arsenic. Homeopathic pharmacies stock thousands of bottles of identical sugar pills, each with a different label.
These dangerous delusions were being taught as fact in a UK university. The shame of it..
Every single request for information about course materials in quack medicine that I have ever sent has been turned down by universities,
It is hardly as important as as refusal of FoI requests to see climate change documents, but it does indicate that some vice-chancellors are not very interested in openness. This secretiveness is exactly the sort of thing that leads to lack of trust in universities and in science as a whole.
The one case that I have won took over three years and an Information Tribunal decision against the University of Central Lancashire (UCLAN) before I got anything.
UCLAN spent £80,307.95.(inc VAT at 17.5%) in legal expenses alone (plus heaven knows how much in staff time) to prevent us from seeing what was taught on their now defunct “BSc (Hons) homeopathy”. This does not seem to me to be good use of taxpayers’ money. A small sample of what was taught has already been posted (more to come). It is very obvious why the university wanted to keep it secret, and equally obvious that it is in the public interest that it should be seen.
UCLAN had dropped not only its homeopathy "degree" before the information was revealed, They also set up an internal inquiry into all the rest of their courses in magic medicine which ended with the dumping of all of them.
Well, not quite all, There was one left. An “MSc” in homeopathy by e-learning. Why this was allowed to continue after the findings of UCLAN’s internal review, heaven only knows. It is run by the same Kate Chatfield who ran the now defunct BSc. Having started to defend the reputation against the harm done to it by offering this sort of rubbish, I thought I should finish. So I asked for the contents of this course too. It is, after all, much the same title as the course that UCLAN had just been ordered to release. But no, this request too was met with a refusal
Worse still, the refusal was claimed under section 43(2) if the Freedom of Information Act 2000. That is the public interest defence, The very defence that was dismissed in scathing terms by the Information Tribunal less than two months ago,
To add insult to injury, UCLAN said that it would make available the contents of the 86 modules in the course under its publication scheme, at a cost of £20 per module, That comes to £1,720 for the course, Some freedom of information.
Because this was a new request, it now has to go through the process of an internal reviw of the decision before it can ne referred to the Information Commissioner. That will be requested, and since internal reviews have, so far, never changed the initial judgment. the appeal to the Information Commissioner should be submitted within the month. I have been promised that the Information Commissioner will deal with it much faster this time than the two years it took last time.
And a bit more unfreedom
I first asked Middlesex for materials from their homeopathy course on 1 Oct 2008. These courses are validated by Middlesex university (MU) but actually run by the Centre for Homeopathic Education. Thw MU site barely mentions homeopathy and all I got was the usual excuse that the uninsersity did not possess the teaching materials. As usual, the validation had been done without without looking at what was actually being taught. The did send me the validation document though [download it] As usual, the validation document shows no sign at all of the fact that the usbject of the "BSc" is utter nonsense. One wonderful passage says
“. . . the Panel were assured that the Team are clearly producing practitioners but wanted to explore what makes these students graduates? The Team stated that the training reflects the professional standards that govern the programme and the graduateness is achieved through developing knowledge by being able to access sources and critically analyse these sources . . . “
Given that the most prominent characteristic of homeopaths (and other advocates of magic medicine) is total lack of critical ability, this is hilarious. If they had critical ability they wouldn’t be homeopaths. Hilarious is not quite the right word, It is tragic that nonsense like this can be found in an official university document.
Middlesex, though it doesn’t advertise homeopathy, does advertise degrees in Traditional Chinese Medicine, Herbal Medicine and Ayurveda. On 2nd February 2010 I asked for teaching materials from these courses. Guess what? The request was refused. In this case the exemptions under FOIA were not even invoked but I was told that "All these materials are presently available only in one format at the University – via a student-only accessed virtual learning environment. ". Seems that they can’t print out the bits that I asked for, The internal review has been requested, then we shall see what the Information Commissioner has to say.
Two other cases are at present being considered by the Information Commissioner (Scotland), after requests under the Scottish FoIA were refused. They are interesting cases because they bear on the decision, currently being considered by the government, about whether they should implement the recommendations of the execrable Pittilo report.
Napier University Edinburgh. The first was for teaching material form the herbal medicine course at Napier University Edinburgh. I notice that this course no longer appears in UCAS or on Napier’s own web site, so maybe the idea that its contents might be disclosed has been sufficient to make the university do the sensible thing.
Robert Gordon University Aberdeen The second request was for teaching material from the “Introduction to Homeopathy” course at the Robert Gordon University Aberdeen. The particular interest that attaches to this is that the vice-chancellor of Robert Gordon university is Michael Pittilo. The fact that he is willing to tolerate such a course in his own university seems to me to disqualify him from expressing any view on medical subjects.
Michael Pittilo, Crohn’s disease and Andrew Wakefield
Michael Pittilo has not been active in science for some time now, but Medline does show scientiifc publications for Pittilo RM, between 1979 anf 1998. Between 1989 and 1995 there are five papers published jointly with one Andrew Wakefield. These papers alleged a relationship between measles virus and Crohn’s disease. The papers were published before tha infamous 1998 paper by Wakefield in the Lancet (now retracted) that brought disgrace on Wakefield and probably caused unnecessary deaths.. The link between measles and Crohn’s disease is now equally disproved.
The subject has been reviewed by Korzenik (2005) in Past and Current Theories of Etiology of IBD. Toothpaste, Worms, and Refrigerators
“Wakefield et al proposed that Crohn’s results from a chronic infection of submucosal endothelium of the intestines with the measles virus [Crohn’s disease: pathogenesis and persistent measles virus infection. Wakefield AJ, Ekbom A, Dhillon AP, Pittilo RM, Pounder RE., Gastroenterology, 1995, 108(3):911-6]”
"This led to considerable media interest and< public concern over use of live measles vaccine as well as other vaccines. A number of researchers countered these claims, with other studies finding that titers to measles were not increased in Crohn’s patients, granulomas were not associated with endothelium 49 , measles were not in granulomas50 and the measles vaccine is not associated with an increased risk of Crohn’s disease51–55 "
This bit of history is not strictly relevant to the Pittilo report, but I do find quite puzzling how the government chooses people from whom it wishes to get advice about medical problems.
I notice that the Robert Gordon university bulletin has announced that
“Professor Mike Pittilo, Principal of the University, has been made an MBE in the New Year Honours list for services to healthcare”.
That is a reward for writing a very bad report that has not yet been implemented, and one hopes, for the sake of patients, will never be implemented. I do sometimes wonder about the bizarre honours system in the UK.
On 16th February, the death of Michael Pittilo was announced. He had been suffeing from cancer and was only 55 years old. I wouldn’t wish that fate on my worst enemy.
Can’t resist another bit of straight plagiarism. In this week’s Times Higher Education, the inimitable Laurie Taylor wrote this.
Rock around the clock
Professor Georgina Kunzite, the Head of our Department of Crystal Healing, has reacted strongly to the recent High Court ruling that the University of Central Lancashire must hand over teaching materials from its defunct homeopathy course to a campaigning sceptic.
Speaking to our reporter, Keith Ponting (30), she said she had no intention of acceding to any similar request for materials from her own oversubscribed course in crystal therapy. Such a move, she argued, risked undermining the power of the crystals, which were notoriously wary of attempts to question their curative validity.
She had initially been disconcerted by the court’s decision. “But since then I’ve taken to sleeping with a large lump of pink rhodochrosite crystal under my pillow. This does mildly disturb my partner, but it has certainly helped to rebalance my chakra.”
Well well, where could he have got that idea?
A momentous decision was promulgated (as lawyers say) by the Information Tribunal on December 8th 2009. It marks a step forward in Freedom of Information about how universities spend your money. It has taken 3.5 years to get to this point. Perhaps now there will be an end to the attempts of every single university that I’ve
approached to conceal what they teach.
"The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision"
Back story for this case
24th July 2006. I asked the University of Central Lancashire (UCLAN) for copies of teaching materials and validation documents for their "BSc" degree in homeopathy (this degree no longer exists: it was abolished in 2008). A year later, UCLAN shut the rest of its courses in alternative medicine, after an internal review.
21 August 2006. I was sent the validation documents but refused the teaching materials as UCLAN claimed they were exempt under section 43(2) of the Freedom of Information Act (FOIA)(commercial interests). Two days later I sent a request for the mandatory internal review of the refusal.
4th October 2006. The internal review confirmed the original decision (it always does), and cited, as well as section .43(2) of FOIA, section 21.
21 October 2006. I appealed to the Information Commissioner. The basis of the appeal was that the university might have financial interests in the outcome, but not commercial interests, because universities are not commercial organisations as defined in section 43(2) of the FOIA. In addition, even if the commercial argument was not allowed, the public interest in knowing what was taught was sufficient to justify release of the requested materials.
21 January 2008. The Information Commissioner finally got round to starting on the case.
29 September 2008 The vice-chancellor, Malcolm McVicar, raised an objection to complying with my request under s.36(2)(c) of FOIA. This states that “In the reasonable opinion of a qualified person, disclosure of the information under this Act” “(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs..”
30 March 2009. The decision of the Information Commissioner was published. It has already been described here. Apart from one trivial matter, my appeal was upheld, and UCLAN was ordered to release the requested material within 35 days. However UCLAN did not release the material, but rather launched an appeal against the Information Commissioner. The appeal was heard by an Information Tribunal.
The full text of the Freedom of Information Act is here.
The Information Tribunal
The Tribunal heard the case of University of Central Lancashire v Information Commissioner in Manchester on November 3, 4 and 5. I was an ‘additional party’ to the proceedings and attended in person for the first two days, with the aim of helping the Information Commissioner’s case. This is what the tribunal looked like.
I was amazed to find myself sitting next to the barrister for the Information Commisioner, and still more amazed to be invited to cross-question the witnesses, after she had questioned them.
The witnesses were Malcom McVicar (vice-chancellor of UCLAN), Peter Hyett, (executive director of finance at UCLAN) and David Phoenix (Deputy vice-chancellor, UCLAN).
The decision in full can be read here.
The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision.
So we won.
The details of the decision contain some matters of great interest for universities, in particular the dismissal of the idea that the public can be reassured by either internal or external (e.g. QAA) validation procedures. I’ll try to summarise them (paragraph numbering as in the decision
The one disappointing thing about the Tribunal’s decision was that it contradicted the Information Commissioner’s decision on the meaning of commercial interests.
31 "Therefore, whether on a broad or narrow construction of the statutory words, we are satisfied that UCLAN `s interests in teaching material produced for its degree courses are properly described as “commercial”.
However, that does not affect the outcome because the Tribunal decided that there was no reason to think that the course materials actually had the commercial value that UCLAN said they did. For
36 We were not impressed by the claim that third parties with copyright in the disclosed materials would be alienated by UCLAN `s compliance with a decision that this information must be provided. None gave evidence to that effect.
37 It was not clear to us how a competitor could significantly exploit access to this material, without infringing UCLAN `s copyright or brazenly aping the content of a course, which would surely attract the scorn of the wider academic community. Moreover, it seemed to us likely that most potential students would be attracted to a particular course by the reputation of the teaching staff and a range of extra – curricular factors at least as much as by a comparative study of the powerpoint presentations and notes provided to current students.
39 Finally, in this particular case, we doubt whether this course had a significant commercial value, given the limited enrolment and the virtual absence of overseas interest.
At this point, the appeal is essentially dismissed. Nevetheless, the Tribunal went on to discuss the other defences offered by UCLAN, and some of their conclusions are more interesting than the subtle distinction between ‘financial interests’ and ‘commercial interests’.
40 In the light of this finding, it is not strictly necessary to decide the balance of public interest as to disclosure. Nevertheless, since the issue has been carefully and very fully argued, we shall shortly indicate our view, had the likelihood of prejudice been established.
The commercial interest defence is subject to the public interest argument in s.1(2((b) of the FOIA’
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority
holds the information.
Hence, the decision notice says
41 As ever, the question is whether the public interest in maintaining the exemption outweighs the interest in disclosure.
On the question of public interest, the Tribunal comes down strongly on the side of the Commissioner and me.
46 The public interest in disclosure seems to us appreciably stronger. Apart from the universal arguments about transparency and the improvement of public awareness, we find that there are particular interests here, arising from the nature of a university and the way it is funded.
It is particularly interesting that the Tribunal dismissed the role of internal and external validation as a substitute for transparency. As part of their case (para 18) UCLAN had argued
"Moreover, standards were ensured by the validation procedures which were required before a course was launched and which involved independent expert external monitors and by quality assurance (Q.A.A.) which demands a continuing compliance with national standards."
This cut no ice with the Tribunal. In one of his few direct interjections the Tribunal Chairman, David Farrar Q.C., questioned a witness directly about the internal validation processes, Evidently he was not impressed by the answers. During my own cross questioning of the deputy vice-chancellor, I put to him the view that since the QAA [Quality Assurance Agency] was not allowed to take any notice of the content of courses, that getting a high mark from the QAA was not a substitute for seeing what was actually taught. The deputy vice-chancellor did not seem to disagree strongly with that view.
47 First, the public has a legitimate interest in monitoring the content and the academic quality of a course, particularly a relatively new course in a new area of study, funded, to a very significant extent, by the taxpayer. It is no answer, we consider, to say that this function is performed by the process of validation or the continuing monitoring of standards with external input. Whether or not these processes are conducted with critical rigour, it must be open to those outside the academic community to question what is being taught and to what level in our universities. The apparent perception in some quarters that the intellectual demands of some or many degree courses have been relaxed, that higher classes of degree are too lightly earned, may be largely or entirely unfounded. But it is highly important that the material necessary to a fair judgement be available. That material will often, if not always, include the basic content of the course, such as is requested here.
48 Secondly, this is especially the case where, as with the BSc. (Homeopathy), there is significant public controversy as to the value of such study within a university. In this case, that factor standing alone would have persuaded us that the balance of public interest favoured disclosure.
49 We are not attracted by the somewhat patrician argument that the general public, uninstructed in the specialist subject under scrutiny, would be incapable of forming a proper judgement. That might be so, were it impossible to seek independent expertise to assist in making an assessment. Happily, it is not.
50 Finally, there is a public interest in opening up new methods of teaching and new insights as to the content of courses, so as to stimulate the spread of good practice.
So, a hands down win on the public interest argument.
Prejudice to effective conduct of public affairs
I found incomprehensible the argument that disclosure would ‘prejudice the effective conduct of public affairs’. But it was raised (at the last minute) by UCLAN, and it was considered by the Tribunal. This defence refers to s.36(2)(c) of FOIA. It states that “In the reasonable opinion of a qualified person, disclosure of the information under this Act” “(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs..”
As noted at paragraph 17, it is common ground, established as to (iii), by the jurisprudence of the Tribunal, that this exemption is engaged if three requirements are met. They can be shortly labelled
(i) qualified person
(ii) reasonable opinion
(iii) reasonably arrived at.
The Tribunal seemed to be distinctly unimpressed by the arguments presented by UCLAN.
56 A reasonable opinion may be one with which the Tribunal emphatically disagrees, provided it is based on sound argument and evidence. With great respect to Professor McVicar, whose sincerity is not in question, we can find no adequate evidential basis for this opinion and consider that it rests on two misconceptions as to the application of FOIA. We do not find that it passes the required test of objective reasonableness.
57 We considered separately whether the opinion was reasonably arrived at. Again, our answer is no.
58 Section 36 provides for an exceptional exemption which the public authority creates by its own action, albeit subject to scrutiny of its reasonableness, the likelihood of prejudice and the question of the public interest. That factor of itself justifies a requirement that the authority provide substantial evidence as to the advice (other than legal advice) and the arguments presented to the qualified person upon which his opinion was founded. We emphasise that no set formula is required, just a simple clear record of the process.
59 The need for such evidence is all the greater where, as here, the authority invokes s.36 for the first time after the complaint to the IC [Information Commissioner].
60 The evidence consists of a briefly argued email from Dr. Bostock suggesting that s.36(2)(c) be invoked on the very broadly argued grounds already reviewed. The tone implicitly acknowledges that the claim is rather speculative. We are not concerned with the slightly uncertain use of possibility and likely but the impression left is of a last minute idea, not really thought through or investigated
but merely discussed with solicitors to tie it in to the FOIA. It was sent to the Vice Chancellor at 3.20pm. on a Friday afternoon, 26th. September, 2008, asking for the Vice Chancellor’s agreement. That agreement was forthcoming in a single sentence without further comment in an email reply timed at 12.05pm.on the following Monday.
61 We find that the process of forming the necessary opinion was, to say the least, perfunctory, indeed far short of the careful assessment and investigation that normally supports a qualified opinion for the purposes of s.36.
62 Accordingly, we do not find that it was reasonably arrived at.
62 It is for these reasons that we uphold the Decision Notice. We record our gratitude for the helpful and succinct submissions of counsel on both sides and the incisive contribution of Professor Colquhoun. We wish to add that, whilst we have not accepted the great majority of the arguments advanced by UCLAN, we do not in any way seek to cast doubt on the veracity of the evidence of its witnesses, nor the honesty and loyalty with which they have sought to serve its interests.
63 Our decision is unanimous.
Signed David Farrar Q.C.
Watch this space to see what can now be revealed.
On 24 July 2006, I sent a request to the University of Central Lancashire (UCLAN), under the Freedom of Information Act (2000) I asked to see the teaching materials that were used on their BSc Homeopathy course. The request was refused, citing the exemption under section 43(2) of the Act (Commercial Interests).
Two internal reviews were then held. These reviews upheld and the original refusal on the grounds of commercial interests, Section 43(3), and additionally claimed exemption under Section 21 “that is reasonably accessible to applicants by other means (upon the payment of a fee)….i.e. by enrolling on the course….”
In 21 October 2006 I appealed to the Office of the Information commisioner. (The”public authority” means UCLAN, and “the complainant” is me.)
“The complainant specifically asked the Commissioner to consider the application of section 43(2) to the course materials he had requested. The main thrust of his argument in this regard was that the public authority could not be considered a ‘commercial organisation’ for the purposes of the Act, and that the public authority had confused ‘commercial interests’ with ‘financial interests’. He however added that if the Commissioner decided section 43(2) was correctly engaged, then it was in the public interest to order disclosure.”
In May 2008, my appeal got to the top of the pile, and on 30th March 2009 a judgement was delivered. In all respects but one trivial one, the appeal was upheld. In future universities will not be able to refuse requests for teaching materials.
The Decision Notice is on the web site of the Office of the Information Commissioner, [or download pdf file].
This whole thing has taken so long that the course at which it was aimed has already closed its doors last August (and blamed that, in part, on the problems caused by the Freedom of Information Act). UCLAN also announced a review of all its alternative medicine activities (and asked me to give evidence to it). That review is due to report its findings any time now.
Tha particular course that prompted the request is no longer the point. What matters is that all the usual exemptions claimed by universities have been ruled invalid. Here are a few details
What the decision notice says (the short version)
The full text of the Act is here.
The following three exemptions were judged NOT to apply the requests for university teaching materials. I’ll quote some bits from the Decision Notice.
Section 21 provides that –
“Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.”
34. The public authority’s argument suggests that the requested information is reasonably accessible to the complainant if he enrols as a student on the course, and is therefore not accessible to him by any other means outside the Act unless he decides to make a total payment of £9,345 as a combined payment of three years tuition fees.
40. The Commissioner therefore finds that the public authority incorrectly applied the exemption contained at section 21 of the Act.
Section 42(2) provides that –
“Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”
71. The Commissioner therefore finds that the section 43(2) was incorrectly engaged by virtue of the fact that the public authority’s ability to recruit students is not a commercial interest within the contemplation of section 43(2).
76. In addition to his finding on commercial interests the Commissioner finds that section 43(2) would in any case not be engaged as the likelihood of prejudice to the public authority’s ability to recruit students as a result of disclosure under the Act is no more than the likelihood of prejudice resulting from the availability of the course materials to students already enrolled on the course.
Section 36(2)C provides that –
“Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act-
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs
|98. For the reasons set out above, the Commissioner finds that section 36(2)(c) is not engaged as he does not accept the opinion of the qualified person is an objectively reasonable one. He does not find that disclosure would be likely to prejudice the effective conduct of public affairs.|
Section 41(1) provides that –
“Information is exempt information if-
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”
|56. The Commissioner therefore finds the public authority correctly applied the exemption contained at section 41 to the case studies listed in Annex A. In the Commissioner’s view, even though the patients would not be identifiable if the case studies were disclosed, this disclosure would still be actionable by the patients.|
99. The Commissioner finds that section 41 is engaged
100. He however finds that the exemptions at sections 21, 43(2), and 36(2)(c) are not engaged.
101. The Commissioner therefore finds the public authority in breach of;
• Sections 1(1)(b) and 10(1), because it failed to disclose the remainder of the course materials (i.e. excluding the case studies) to the complainant within 20 working days.
• Section 17(1), because it did not specify in its refusal notice that it was also relying on sections 41 and 36(2)(c).
103. The Commissioner requires the public authority to take the following steps to ensure compliance with the Act:
• Disclose all the course materials for the BSc (Hons) in Homeopathy apart from the case studies listed in Annex A of this Notice.
104. The public authority must take the steps required by this notice within 35 calendar days of the date of this notice.